II. Background

Germany has a federal system of government, with its 16 states (Länder) enjoying substantial legislative and judicial autonomy, through state parliaments and courts. The competence to regulate school policy, education, and cultural affairs belongs largely to the states. At the same time, states in Germany are bound by the German constitution (Basic Law)[2] and by rulings of the Federal Constitutional Court.

Within a total population of 82 million, Germany has an estimated Muslim population of between 3.2 and 3.5 million,[3] about 1 million of whom are German citizens.[4]  Islam is the second largest religion in the country after Christianity. The Muslim community includes various religious orientations, such as for instance Sunnis, Shiites, Ahmadis, and Alevi, and those who are secular.

Many Evangelical Churches and the Roman Catholic Church, a number of minority Christian churches including Jehovah's Witnesses, and the Central Council of Jews, other Jewish organizations, and Kultusgemeinden have received the status of publicly recognized corporations ("Körperschaften des öffentlichen Rechts")-legal bodies under public law. This status includes a number of privileges such as the right to levy taxes on their members, with the help of state agencies. No Muslim congregation has obtained this status.[5]

The majority of Muslims in Germany originate from Turkey. They were originally considered as "guest workers" (Gastarbeiter)-a term that suggests they are temporary residents who will eventually leave. However, the majority has now settled permanently, been joined by their families, some have acquired citizenship and, as one study found, they have "established a wide range of Islamic political and socio-religious organizations."[6]

Baden-Württemberg, Bavaria, Hesse, and North Rhine-Westphalia are the states with the largest populations of Turkish origin. Berlin and Lower Saxony also have a high number of Turkish migrants.

There were a few court cases involving the Islamic headscarf[7] in Germany beginning in the 1980s. Most related to passport and identification pictures, and most resulted in the women being permitted to wear their headscarves.[8] They received little attention from the public or politicians.  It was not until the end of the 1990s that there began to be public debate in Germany about Muslim women wearing the headscarf in employment, leading to the first high-profile court cases.  According to one analysis, the timing is also linked to increased enrollment in German universities by Muslim women who then began to seek work in teaching.[9]

The most influential case involved a woman named Fereshta Ludin. She applied in 1998 for a teaching job in Baden-Württemberg (see box below). Her case was eventually heard by Germany's highest court, the Federal Constitutional Court, and its outcome in September 2003 had a profound impact on the headscarf issue.

Although the court ruled unconstitutional the decision by Baden-Württemberg  to deny Ludin employment as a public school teacher because she wore a headscarf, it did not question the constitutional ability of states to enact laws imposing such restrictions per se.

Fereshta Ludin and the Federal Constitutional Court  

Fereshta Ludin was born in Afghanistan in 1972, lived in Saudi Arabia, and came to Germany in 1987. She attended university in Baden-Württemberg, qualifying to become a school teacher in German, English, and civics, for elementary and secondary school.  She became a German citizen in 1995. Fereshta Ludin has worn the headscarf since the age of 12, a decision she says was her own, and not influenced by her parents. She already faced obstacles in 1997 getting a position as a trainee teacher, due to her wearing the headscarf, but was ultimately allowed to finish her education. In 1998 she applied for a position as a teacher in Baden-Württemberg state's school system, but was rejected. This refusal of employment of the Oberschulamt Stuttgart [Supervisory School Authority of Stuttgart] was based on her insistence that she be allowed to wear her headscarf while teaching, which the authority deemed made her lacking in personal aptitude, and unsuitable and unable to perform the duties of a public servant in accordance with the German Basic Law. It was never disputed that she was fully qualified to work in this profession and there had been no complaints by parents, children, or the school about her behavior during her preparatory service.

Ludin sought unsuccessfully to challenge the denial through the administrative court s in the state and the Federal Administrative Court, starting in 1998. In 2002 she appealed to the Federal Constitutional Court, challenging the constitutionality of her ban from public service.

On September 24, 2003, the majority of the Federal Constitutional Court (five judges out of an eight-judge panel) ruled that there was no legal basis for the refusal to employ Ludin as a teacher because of her wearing the headscarf, and that the refusal violated her fundamental constitutional rights.

The Constitutional Court ruled that any prohibition must be based on a clear statutory foundation. The Court outlined that state "neutrality" in public schools could mean "open inclusive neutrality" which permits all religions-accepting the increasing variety of religions at school and using it as a means for practising mutual tolerance and in this way making a contribution to the attempt to achieve integration. Or it could mean "strict distanced non-religious neutrality." If the state were to tolerate a teacher's being in religious dress at school by their personal decision, this cannot be treated in the same way as a state order to display religious symbols at school (for example, Christian crosses in school buildings). The court made clear that permitting individual "religious" statements by teachers through their clothing should not necessarily be considered as endorsement by the state. The ruling emphasized Ludin's basic right to religious freedom. But it also referred to conflicting constitutional rights, including the interest of the parents, the constitutional right of pupils of freedom from religion and the possible impact on pupils of being unavoidably confronted with a teacher's manifestation of religion, as well as the danger of interference with the peace of the school.

These dangers, the court admitted, are "abstract," and need not necessarily occur in reality. The mere potential that in-school conflicts may arise between the competing constitutional interests of the teachers, parents, and students is insufficient to resolve constitutional balancing of interests. However, if states wish to eliminate even such abstract dangers, it concluded, they must do so by regulating the problem in the applicable School Act or similar specific laws. Resolving this tension includes, the court mentioned, the possibility that the individual Länder may make different provisions, which may also take into account school traditions, the composition of the population by religion, and whether the population is more or less strongly rooted in religion. However, any regulation as well as its justification and the practice of enforcing it, the court also pointed out, must strictly treat all religions and religious communities equally, in law and in practice.

Fereshta Ludin won and lost at the same time. Predictably, Baden-Württemberg's government swiftly enacted a relevant law for public schools. While Ludin's case was remanded back by the Constitutional Court to the Federal Administrative Court for further proceedings, the Federal Administrative Court upheld Baden-Württemberg's new law. In the end, Ludin had had enough of the pressure and decided to abandon further appeals. She is now employed in a private Islamic elementary school in Berlin.

The judgment left open the possibility of states enacting a total ban of religious symbols or guaranteeing religious plurality in school, and left it to the state governments to determine which approach to adopt.

In the aftermath of Ludin case, the legislatures in half of Germany's states moved quickly to enact laws banning public school teachers from wearing religious symbols and clothing-with the actual initial target being headscarves-in school. In two states, the ban was extended to other civil servants. The remaining half decided ultimately not to enact specific legislation to ban or otherwise regulate headscarves (three discussed proposals for bans, but those proposals were later rejected by the majority in the state parliament, or abandoned).

State bans on the headscarf were subsequently litigated in state courts. Some cases have been dealt with by labor courts (which hear employment disputes)-at first instance in local labor courts and on appeal in the relevant state labor court. Others have been heard in the general administrative courts (which deal with civil service law and education cases, among other issues)-at first instance in local administrative courts and on appeal in the relevant state administrative court.

Legislation and cases on the headscarf issue attracted wide publicity in the media, in politics, and with the public, leading senior politicians to comment on the issue. Gerhard Schröder, Germany's then-chancellor, said in a 2003 interview that there was no room for headscarves in the public service.[10] Renate Schmidt, minister for women from 2002 until 2005, also spoke out against the headscarf, as did a number of MPs of Turkish origin in the Bundestag. By contrast, Marieluise Beck, then-commissioner for migration, refugees and integration, spoke out against the restrictions, together with other prominent women politicians.[11]

Proponents of restrictions on the headscarf

Women's equality

Many supporters of headscarf bans-including the editor of the feminist magazine Emma, Alice Schwarzer,[12] and social scientist and writer Necla Kelek,[13] lawyer Seyran Ates,[14] and other commentators with a Turkish background-express their arguments using the language of women's rights.[15] Proponents argue that the headscarf oppresses women and violates the constitutional principle of gender equality, and see restrictions on it as a positive element that upholds women's rights.[16]

It is also argued that the ban offers a form of protection against possible compulsion and pressure on women and girls by their communities to wear the headscarf. At the same time, it is argued, teachers who wear the headscarf will not be able to support girls who are fighting their family and community in order to choose not to wear the headscarf.[17]

The "neutrality" of the state

The principle of state neutrality refers to the duty of the state to preserve neutrality in ideology and religion. The Constitutional Court has determined that the principle derives from the Basic Law.

Some proponents of state legislation restricting the headscarf and other religious clothing-including Social Democratic Party (SPD) politicians in Berlin and Bremen, and Lale Akgün, an SPD MP of Turkish origin-claim that it is designed to ensure the neutrality of the teaching environment and public services as well as the "political and religious peace" of the school and of the state. They argue that the wearing of headscarves by teachers must be prohibited to protect pupils from what they describe as a freedom not to be confronted by a teacher (who represents the state and the school) manifesting a particular religion.[18] State officials emphasize the importance of this principle (and protection from any possible indoctrination) in Germany, which imposes and implements strict compulsory school attendance (almost no home schooling is possible).[19]

Some Church representatives and (mainly Christian Democrat) politicians justify privileging Christianity in restrictions on the grounds that it is an integral part of German culture and the German value system. To them, the headscarf represents a threat to the Christian heritage that underpins German constitution values. By this logic, Christian symbols are not considered a threat to the principles of the constitution because they are cultural rather than religious and therefore neutral.

Islam and integration

In Germany, as elsewhere in Europe, the debate over the headscarf has intertwined issues of religious freedom with concerns over religious fundamentalism and the political use of religious symbols such as the headscarf. Some proponents of restrictions on the headscarf, including some Turkish organizations in Germany, women with a Turkish migrant origin, some feminists, the Christian Democratic Party, and the right-wing national parties The Republicans  and the German People's Union (DVU) believe that Islamists pose a threat to the state as well as rights and freedoms of women, and that religious movements have a plan to eliminate secular structures slowly, with the acceptance of the headscarf being the first step,  which will be followed by new demands.[20]

The secular Turkish Community in Germany (TGD)[21] and Turkish Union in Berlin-Brandenburg (TBB) have repeatedly warned against tolerance of the headscarf. The TGD favors a secular approach with the prohibition of all religious symbols in schools and throughout the whole civil service, and has been critical of headscarf regulations that exempt Christian symbols on the grounds that they discriminate against Muslims.[22]

Some politicians and feminists in Germany also argue that the headscarf hinders the integration of Muslim women in Germany, and that restrictions on the headscarf in teaching and the civil service send a clear signal in favor of integration, to the benefit of young Muslim women.[23]